Law Commons^™

Globalization And Genocidalism: Fictional Discourse Without Borders (For Fun And Profit), Aleksandar Jokić, Tiphaine Dickson

Philosophy Faculty Publications and Presentations

In this essay we explore the relationship between globalization and genocidalism. “Globalization” is understood as “freedom and ability of individuals and firms to initiate voluntary economic transactions with residents of other countries,” while “genocidalism” is defined as “(i) the purposeful neglect to attribute responsibility for genocide in cases when overwhelming evidence exists, and as (ii) the energetic attributions of “genocide” in less then clear cases without considering available and convincing opposing evidence and argumentation.”

The hypothesis that we defend here as explanatory of globalization’s “surprising” failure to live up to its often repeated theoretical promise that it is not a …

Agenda: Climate Change And The Future Of The American West: Exploring The Legal And Policy Dimensions, University Of Colorado Boulder. Natural Resources Law Center

Climate Change and the Future of the American West: Exploring the Legal and Policy Dimensions (Summer Conference, June 7-9)

Sponsors: The William and Flora Hewlett Foundation; BP America; Holland & Hart; Patrick, Miller & Krope, P.C.; The Rocky Mountain Mineral Law Foundation, Rocky Mountain Natural Resource Center of the National Wildlife Federation, Western Water Assessment.

Exploring the legal and political dimensions that climate change will bring to the American West will be the focus of the CU-Boulder Natural Resources Law Center's 27th Annual Summer Conference.

Titled "Climate Change and the Future of the American West: Exploring the Legal and Policy Dimensions," the conference will be held June 7-9 at the Fleming Law Building on the University of Colorado at …

The Iraqi High Criminal Court: Controversy And Contributions, Michael A. Newton

Vanderbilt Law School Faculty Publications

The Iraqi High Criminal Court established to prosecute Saddam Hussein and other leading Ba’athists is one of the most visible of the current efforts to establish criminal accountability for violations of international norms. Juxtaposed against other tribunals, the High Criminal Court has provoked worldwide debate over its processes and its prospects for returning societal stability founded on respect for human rights and the rule of law to Iraq. This article explores in detail the legal basis for the formation of the High Criminal Court under the law of occupation. It addresses the relationship between the Iraqi model of prosecuting crimes …

John Paul Stevens, Human Rights Judge, Diane Marie Amann

Scholarly Works

This article explores the nature and origins of Supreme Court Justice John Paul Stevens' engagement with international and foreign law and norms. It first discusses Stevens' pivotal role in the revived use of such norms to aid constitutional interpretation, as well as 1990s opinions testing the extent to which constitutional protections reach beyond the water's edge and 2004 opinions on post-September 11 detention. It then turns to mid-century experiences that appear to have contributed to Stevens' willingness to consult foreign context. The article reveals that as a code breaker Stevens played a role in the downing of the Japanese general …

Noncompliance And The International Rule Of Law, Jacob Katz Cogan

Faculty Articles and Other Publications

Though it is said that compliance with international law is high, the international system contains few legislative, judicial, or executive processes analogous to those of States, and, consequently, the system's ability to self-correct and self-enforce is much more limited, creating gaps between aspiration and authority, procedures and policy. This Essay contends that noncompliance - particularly operational noncompliance - is a necessary component of less capable legal systems, such as international law. Though compliance, of course, is and should be the norm, those who discount operational noncompliance disregard the tension, which is acute in the international arena, between the necessity in …

Whose Law Is It Anyway? The Cultural Legitimacy Of International Human Rights In The United States, Elizabeth M. Bruch

Law Faculty Publications

No abstract provided.

South Korea's National Security Law: A Tool Of Oppression In An Insecure World, Diane B. Kraft

Law Faculty Scholarly Articles

In September 2004, the ruling party in South Korea, along with two opposition parties, called for the abolishment of the 1948 anti-communist National Security Law. The following month, Amnesty International, a long-time critic of the law, officially called for the law's repeal. The law had been enacted in 1948 in response to threats from communist North Korea, but has long been used by the government to silence legitimate opposition in South Korea. This Comment will examine South Korea's National Security Law as viewed by its domestic supporters and critics, as well as by the international community. Part I will consider …

How Just Is The Union's Area Of Freedom, Security And Justice?:An Assessment Of The Normative Status Of International Fundamental Rights In The Union's Legal Order., Stephen Carruthers

Other resources

This thesis argues that international fundamental rights provide the most appropriate measure of justice for the Union’s area of ‘freedom, security and justice’ (AFSJ). However, it is argued that the normative status of international fundamental rights in Union law is undermined by the pursuit of the objective of autonomy of Union law and deficiencies in the legal mechanisms for giving effect to those rights.

This research analyses the sources and normative status of international fundamental rights in Union law, and in particular the AFSJ, both as currently constituted and under the Constitution, and assesses the robustness and effectiveness of the …

Between Rogues And Liberals: Towards Value Pluralism As A Theory Of Freedom Of Religion In International Law, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Rule-Skepticism, "Strategery," And The Limits Of International Law, David Gray

Faculty Scholarship

This is a review essay of Eric Posner and Jack Goldsmith's fascinating book, The Limits of International Law. In the essay I provide an exegesis of the core argument of the book, which is that the conduct of states in fields occupied by international law is more powerfully described by game theory than by law talk. In particular, the authors argue that state conduct traditionally described in terms of obedience and violation is actually determined by self-interest modified by the strategic conditions of identifiable games; principally coincidence games, coordination games, coercion games, and iterated prisoner dilemmas. In the essay I …

Remarks By An Idealist On The Realism Of 'The Limits Of International Law', Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This paper is a response to Jack L. Goldsmith and Eric A. Posner, 'The Limits of International Law' (Oxford 2005), part of a symposium on the book held at the University of Georgia Law School in October 2005. The review views 'The Limits of International Law' sympathetically, and focuses on the intersection between traditional and new methodologies of international law scholarship, on the one hand, and the substantive political commitments that differing international law scholars hold, on the other. The paper notes that some in the symposium claim that the problem with 'The Limits of International Law' is that it …

Comparative Study Of The Formation Of Electronic Contracts In American Law With References To International Law, Roberto Rosas

Faculty Articles

An understanding of the basic principles that regulate contract formation is of great importance when deciphering the most appropriate ways of fom1ing a new contract or when assessing the legality of an already existing contract. While the basic rules of contract formation are generally applicable to all types of contracts regardless of the method utilized in their creation, there are some juridical rules that apply specifically to electronically created contracts.

The Vexing Problem Of Authority In Humanitarian Intervention: A Proposal, Fernando R. Tesón

Scholarly Publications

As is well known, the doctrine of humanitarian intervention raises a host of thorny issues: the threshold for intervention, the question of proportionality, the problem of last resort, the dilemma of whether or not to codify standards and procedures, and so forth. In this paper I will not address those issues; crucial and controversial as they are; I will assume that they have been somehow settled. I will also assume that it is desirable to find alternatives to unilateral intervention. The question, then, becomes this: who should authorize humanitarian intervention? Any acceptable authorizing procedure must avoid over-intervention and abuse on …

The Current State Of International Law, S. James Anaya

Publications

No abstract provided.

Four Mistakes In The Debate On "Outsourcing Authority", Roger P. Alford

Journal Articles

The purpose of this Article is to discuss common mistakes in the current debate on outsourcing authority. The first mistake in the debate on outsourcing authority is about the protagonists. To focus solely on the fact that some justices espouse this approach, while others do not, distorts the true picture of the rich debate that is ongoing at the bar, the bench, the academy, and beyond. Mistaking the voices in the debate will distort what is at issue in the discussion. The reality is much more complex. There is a groundswell of opposition to this trend from various corners and …

Foreign Relations As A Matter Of Interpretation: The Use And Abuse Of Charming Betsy, Roger P. Alford

Journal Articles

Charming Betsy is a canon of construction that construes legislative enactments consistent with the law of nations. This canon promotes the passive virtue of avoiding constitutional problems by eschewing potential international law violations through statutory interpretation, thereby enhancing the United States' performance in foreign affairs. As a rule of separation of powers, Charming Betsy helps explain how foreign relations concerns clarify the scope of legislative, executive, and judicial authority. But when advocates contend that the Constitution likewise should be read through the lens of Charming Betsy, they abuse the doctrine by ignoring its purpose. While structural guarantees that relate to …

Pro-Democratic Intervention In Africa, Jeremy I. Levitt

Journal Publications

In the past twenty years the people of the African continent have experienced human suffering on a scale unparalleled in human history. For the past decade I have examined and documented the evolution of Africa's peacekeeping, peace enforcement, regional collective security, and conflict management landscape as well as Africa's contribution to international law, particularly as it relates to the jus ad bellum, "the law of the use of force". Although an abundance of scholarly work and official studies have examined the complexities of humanitarian intervention, only a select body of credible work has considered the phenomenon of pro-democratic intervention (PDI)--very …

Rules Of Evidence For The Use Of Force In International Law's New Era, Mary Ellen O'Connell

Journal Articles

International law is ready for a period of renewal in this post-post-modern era. I predict this renewal will come from reviving classical doctrines, such as the positive-law doctrine of sources, and from revisiting formalism. Such renewal will not be possible for the international law of evidence because there is no classical doctrine. Perhaps, as Charles Brower suggests, this is because of the differing civil and common law attitudes toward the rules of evidence, especially with respect to the burden of proof. It seems to me, however, that we need a law of evidence in international law, especially for the international …

The Legal Limits Of Universal Jurisdiction, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

Despite all the attention it receives from both its supporters and critics, universal jurisdiction remains one of the more confused doctrines of international law. Indeed, while commentary has focused largely and unevenly on policy and normative arguments either favoring or undercutting the desirability of its exercise, a straightforward legal analysis breaking down critical aspects of this extraordinary form of jurisdiction remains conspicuously missing. Yet universal jurisdiction's increased practice by states calls out for such a clear descriptive understanding. This Essay engages this under-treated area. It offers to explicate a basic, but overlooked, feature of the law of universal jurisdiction: If …

The Wall And The Law: A Tale Of Two Judgements, Susan M. Akram, S. Michael Lynk

Faculty Scholarship

The seminal rulings in 2004 by the International Court of Justice and the Israeli High Court on the legality of the wall/barrier that Israel is building through the occupied West Bank and East Jerusalem provide a study in contrast. While both judgements were critical of the wall/barrier, their judicial approaches and legal conclusions were strikingly divergent, particularly given that the two courts were purporting to rely upon the same principles of international law. The judgements also elicited quite different political and diplomatic reactions, especially among the parties most involved in the Israel/Palestine conflict. This article explores the legal analysis and …

Gendered Subjects Of Transitional Justice, Katherine M. Franke

Faculty Scholarship

Transitional societies must contend with a range of complex challenges as they seek to come to terms with and move beyond an immediate past saturated with mass murder, rape, torture, exploitation, disappearance, displacement, starvation, and all other manner of human suffering. Questions of justice figure prominently in these transitional moments, and they do so in a dual fashion that is at once backward and forward looking. Successor governments must think creatively about building institutions that bring justice to the past, while at the same time demonstrate a commitment that justice will form a bedrock of governance in the present and …

Indian Givers: What Indigenous Peoples Have Contributed To International Human Rights Law, S. James Anaya

Publications

No abstract provided.

The Cape Town Approach: A New Method Of Making International Law, Mark J. Sundahl

Law Faculty Articles and Essays

The use of multilateral treaties in the field of international commercial law has been in a state of steady decline. Traditional treaty law has been gradually replaced in recent years by softer methods of making international law, such as the use of restatements and model laws. Some scholars even claim that treaty law is dead or dying. This Article explains how the Cape Town Convention on International Interests in Mobile Equipment (which entered into force on March 1, 2006) provides an innovative approach to the creation of treaties that promises to revive the status of treaties in international law. The …

Centennial Essays: Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

The first words of the first essay published in our pages pose a challenge as prescient as it is timely:

The increase of popular control over national conduct, which marks the political development of our time, makes it constantly more important that the great body of the people in each country should have a just conception of their international rights and duties.

With this precept in mind, we begin our celebration of the one-hundredth anniversary of the American Journal of lnternational Law and its publisher, the American Society of International Law.

Triptych: Sectarian Disputes, International Law, And Transnational Tribunals In Drinan's "Can God And Caesar Coexist?", Christopher J. Borgen

Faculty Publications

Can international law be used to address conflicts that arise out of questions of the freedom of religion? Modern international law was born of conflicts of politics and religion. The Treaty of Westphalia, the seed from which grew today's systems of international law and international relations, attempted to set out rules to end decades of religious strife and war across the European continent. The treaty replaced empires and feudal holdings with a system of sovereign states. But this was within a relatively narrow and historically interconnected community: Protestants and Catholics, yes, but Christians all. Europe was Christendom.

To what extent …

Constitutions As "Living Trees"? Comparative Constitutional Law And Interpretive Metaphors, Vicki C. Jackson

Georgetown Law Faculty Publications and Other Works

Part I below explores the interpretive approaches of three other high national courts that have engaged in constitutional review over a long period of time, identifying two respects in which they may bear on this debate. First, their jurisprudence relies on interpretive approaches that depend on multiple sources and forms of argument-what some call an "eclectic" method, and others might call common law constitutionalism. Second, the jurisprudence of other significant national courts acknowledges the possibility that interpretive understandings will change. Indeed, in those countries with continuity of rights-protecting constitutional regimes and with high courts vested with the power of judicial …

Introduction: One Hundred Years Of International Law At Fordham University, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

In the past 100 years, the connotations of the term "international" have changed dramatically. The ideas we have of concepts such as "international communication" and "global travel" are dramatically different from what those concepts would have meant to our forebears - if they had even thought in such terms. But an international perspective is not new at Fordham Law School. The idea of the interconnectedness of our social and legal systems with those of other Nations is one of the foundational values of our school, and it has shaped our history since we opened our doors 100 years ago.

From …

Poverty, Agency And Resistance In The Future Of International Law: An African Perspective, Obiora Chinedu Okafor

Articles & Book Chapters

This article enquires into the likely posture of future international law with respect to African peoples. It does so by focusing on three of the most important issues that have defined, and are likely to continue to define, international law’s engagement with Africans. These are: the grinding poverty in which most Africans live, the question of agency in their historical search for dignity, and the extent to which these African peoples can effectively resist externally imposed frameworks and measures that have negative effects on their social, economic and political experience. International law’s future posture in these respects is considered through …

China And The Human Right To Health: Selective Adaptation And Treaty Compliance, Pitman B. Potter

All Faculty Publications

The international community has devoted considerable energy to dialogue and exchanges with China on issues of treaty compliance in areas of trade and human rights, and while many improvements are evident in China’s legal regimes for trade and human rights, problems remain. Further, academic and policy discourses on China’s trade and human rights policy and practice are all too often conflicted by normative differences and illusions about them. The paradigm of “selective adaptation” offers a potential solution by examining compliance with international trade and human rights treaties by reference to the interplay between normative systems associated with international rule regimes …